HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Criminal Appeal No. 152 / 2017
Sawai Singh @ Sawai @ Khetu son of Shyopal by caste Balai
(Meghwal) resident of bay, police station-Navalgarh, District
Jhunjhunu, (Raj.)

—-Appellant
Versus
State Of Rajasthan Through Pp
—-Respondent

__
For Appellant(s) : Ms. Rajesh Kandwal
For Respondent(s) : Mr. N.S. Dhakad, PP
__
HON’BLE MR. JUSTICE DEEPAK MAHESHWARI
Order
14/07/2017

1. Heard learned counsel appearing for the accused-

appellant as also learned public prosecutor.

2. This appeal has been preferred by accused Sawai Singh

@ Sawai @ Khetu assailing the judgment dated 21 October, 2016

whereby learned Sessions Judge, Jhunjhunu has convicted him for

the offences punishable under section 323 and 376 read with 511

IPC. Learned trial court has awarded one month rigorous

imprisonment for the offence under section 323 IPC and rigorous

imprisonment for three years and six months along with a fine of

Rs. 5,000/- for the offence under section 376/511 IPC, in default

the accused was ordered to undergo rigorous imprisonment for six

months.

3. Learned counsel appearing for the accused-appellant

has stated that there is material contradiction on various points in
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FIR Exhibit P-1 and the statements given by prosecution

witnesses. So called eye witness who was driving camel cart

nearby the scene of occurrence has not been examined. It is not

proved whether prosecutrix returned from the school when she

was allegedly ravished or had gone to graze the goats. She further

submits that the accused has been falsely implicated because of

enmity on account of dispute between the parties about the

boundaries of agricultural fields. All these contradictions and

lacunas in prosecution story have been ignored by learned

Sessions Judge, Jhunjhunu. She thus submits judgment impugned

may accordingly be quashed and set aside while allowing the

appeal.

4. In alternative, prayer of learned counsel for accused is

that accused Sawai Singh has already undergone major part of the

sentence awarded to him by the trial court and if the conviction is

not set aside, it may kindly be ordered to reduce the sentence of

the accused to the period already undergone.

5. Per contra, learned public prosecutor has stated that

the facts narrated in FIR Exhibit P-1 have been materially

supported by all the prosecution witnesses. Minor contradictions

which do not go to the root of the case cannot be taken into

consideration. Fact of enmity between the parties has not been

proved by the accused. There is consistency in the statements

given by the prosecution witnesses so far as the commission of

attempt to rape is concerned. Prosecutrix is a minor girl, of the

age of around 12 years. Minor contradictions are natural to occur

in her statements but they do not came in the way to establish the
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guilt of accused beyond reasonable doubt. She thus submits that

the impugned judgment may kindly be upheld while rejecting the

appeal.

6. In light of the arguments advanced, I have scanned the

oral as well as the documentary evidence available on record and

the judgment impugned in view thereof.

7. As per report Exhibit P-1, when prosecutrix Punam

aged 13 years, had gone to the field after her school was closed,

accused Sawai Singh forcibly caught hold of her, slapt on her

cheek also took a bite on it. He removed Salvaar of prosecutrix

and try to ravish her. When she cried accused ran away. This

report was lodged on the next day of alleged incident by parents

of prosecutrix. Charge-sheet was filed against the accused for

offences under section 323 and 326/511 IPC after investigation

PW-1 Rameshwar Lal father, PW-2 Pappu brother, PW-3 Smt.

Kamla Devi, mother of prosecutrix and PW-4 Punam prosecutrix

herself were examined during trial, PW-5 Dr. N.K. Agrawal, who

examined prosecutrix for her age, PW-6 Smt. Sumitra – teacher of

the school where the prosecutrix studied was also examined

regarding age of prosecutrix. And lastly PW-7 Suresh Chand,

Investigating Officer was also examined. After concluding the

trial, learned trial court held the accused guilty and awarded

sentence as mentioned above.

8. On close scrutiny of the prosecution evidence, it comes

out that PW-4 Punam has materially corroborated the facts

mentioned in FIR Exhibit P-1. She has stated that after coming

from her school she went to graze the goats in agricultural field.

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Sawai Singh was cutting the branches of Khejri tree nearby. He

came to her asking for water. Then he caught hold of her and

removed her under garments (Jampher and Chaddi). He also

removed his pant and fell down on her. He also took a bite on her

cheek. Prosecutrix tried to release herself and started weeping. A

person going on the camel cart saw her. Accused Sawai Singh ran

away after seeing that person. Thereafter she reported the

incident to her parents who took her to the police station to get

the report lodged. Even during cross-examination, no statement

has been made by prosecutrix which can impeach the veracity of

her statement. She has stated that as her father had gone to sell

cereals (moong), she went to graze the goats after coming from

school. She has stated that accused threw sand on her head and

eyes. She has admitted that there was no sign of injuries on her

body and her clothes were also not torn. But in my view, these

facts cannot be considered to make the alleged incident unreliable.

She denied the suggestion that there is a dispute between her

family and accused Sawai Singh about the boundaries of their

fields.

9. On the basis of narration given by prosecutrix to her

father PW-1 Rameshwar Lal and mother PW-3 Kamla Devi, they

have given their statements. PW-1 has admitted that he got the

report written from his relative Kesar Ji. In view of it, it can be

comprehended that some minor contradiction in the facts

mentioned in the report might have occurred. But there is no

material contradiction touching the root of the case.

10. PW-1, PW-3 and PW-4 also stated about the steps
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taken during investigation and preparing site inspection plan

Exhibit P-3, MLR Exhibit P-4 and examination report about the age

Exhibit P-5. PW-5 Dr. N.K. Agarwal has also deposed about

examination of prosecutrix and preparing MLR Exhibit P-4. No

visible injury was found on the body of the prosecutrix. As per X-

ray conducted of her bone joints namely wrist and hip, her age

was estimated to be between 11 to 14 years. Besides this, PW-6

Smt. Sumitra has also been examined who has stated that Punam

had studied in her school up to class 9 th. As per school record her

date of birth is 14 October, 2001. This date of birth was mentioned

by her guardian in the admission form at the time of her

admission in class first. As per the Scholor Register of the school

and other record, her date of birth appears to be 14 October,

2001. As per this date prosecutrix appears to be of around 10

years on the date of occurrence i.e. 15.12.2011. This age is well

within age estimated by PW-5 after conducting examination of

prosecutrix regarding her age.

11. Investigating Officer of the case PW-7 Suresh Chand

also narrated the whole proceedings which was conducted by him

during investigation. He has also stated in his cross-examination

that there was no visible injury on the body of prosecutrix. Same

fact was narrated by prosecutrix herself. PW-7 Suresh Chand has

stated that there was no sign of any camel cart nearby the place

of occurrence. As that person was unknown no investigation could

be conducted from him. In my view, there is lacuna in the

prosecution story in this aspect only. But simply because of non

examination of that person, the whole prosecution story,
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established by other reliable evidence, cannot be thrown away.

12. Learned trial court has considered the above stated

prosecution evidence very minutely and has drawn the conclusion

that there is no embellishment or contradiction which create

impression that the prosecution story is unreliable or concocted.

After scrutiny of the evidence available on record this Court is also

of the view that there is no such contradiction between the

statements given by various prosecution witnesses on which

reliability of prosecution story can be impeached. The inference

drawn by learned trial court appear to be in complete consonance

with the evidence.

13. In view of above, the conviction held by learned trial

court against the accused for offences under section 323 and 376

read with 511 IPC is upheld.

14. So far as the question of quantum of sentence is

concerned, the warrant of commitment to jail of the accused

prepared by learned trial court shows that the accused is in

custody since 25 March, 2014. This appeal has been preferred by

the accused from Central Jail, Bikaner. It is thus clear that he is

continuing in custody for a period of almost three years and four

months. Substantial part of the substantive sentence has almost

been served by the accused-appellant. In circumstances of the

case, it appears reasonable that the sentence awarded to him may

be reduced to the period of custody already undergone by him. So

far as amount of fine is concerned, it will remain the same as

imposed by learned trial court. But the sentence for default in

payment of fine, which has been awarded as six months rigorous
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imprisonment appears to be excessive and deserves to be

reduced. Thus sentence for default is reduced from six months to

two months rigorous imprisonment. Rest of the judgment passed

by learned trial court is upheld except as mentioned above.

15. The appeal stands disposed of accordingly.

(DEEPAK MAHESHWARI)J.

JKP/40